Opinion
No. 19115/2011.
2012-11-2
Rajesh MADDIWAR, Plaintiff, v. Komal MADDIWAR, Defendant.
Robert J. Gursky, Esq., Kew Gardens, NY, for Plaintiff. Andrea Seychett Schear, Esq., Melville, NY, for Defendant.
Robert J. Gursky, Esq., Kew Gardens, NY, for Plaintiff. Andrea Seychett Schear, Esq., Melville, NY, for Defendant.
PAM JACKMAN BROWN, J.
Recitation, as required by CPLR § 2219(a), of the following papers numbered 1 to 9 read on this Order to Show Cause, dated March 2, 2012 and duly submitted on July 11, 2012. Considered in the review of this motion seeking an Order: (1) pursuant to DRL § 236(b) awarding the Defendant temporary, non-taxable spousal maintenance in the amount of Six Thousand Eight Hundred seventy-five ($6,875.00) Dollars per month and; (b) pursuant to DRL § 240(1)(b) awarding the Defendant temporary child support in the amount of Two Thousand Five Hundred ($2,500.00) Dollars per month; and (c) pursuant to DRL § 236(B) directing the Plaintiff to pay pendente lite, the mortgage, real estate taxes, water and homeowner's insurance on the marital residence located at 214–33 27th Avenue, Bayside, New York 11360; and (d) directing the Plaintiff to pay one hundred (100%) percent of the premiums and all unreimbursed and non-insured medical, dental, optical, therapeutic, psychological and pharmaceutical expenses for the Defendant and the infant issue of the marriage pendente lite; and (e) pursuant to DRL § 234 directing that the Defendant has exclusive use and possession of the 2010 Honda CRV; and (f) directing the Plaintiff to pay all expenses associated with the Defendant's automobile, including, but not limited to, insurance, maintenance and repairs, gas, oil, inspection and registration fees; and (g) directing the Plaintiff to maintain any/or purchase a life insurance on his life with a death benefit of a least One Million ($1,000,000.00) Dollars, naming Defendant as irrevocable beneficiary, pendente lite; and (h) directing the Plaintiff to pay the cost of the nursery school for AA .; (i) restraining and enjoining the Plaintiff from transferring, encumbering, liquidating or otherwise disposing of any and all marital or separate assets, either real or personal, including, but not limited to, any assets and/or accounts in the name of Plaintiff with any other individual; and (j) enjoining and restraining the Plaintiff and his agents, partners, attorneys, servants and employees acting on his behalf, during the pendency of this action, from charging, spending, purchasing or borrowing anything in such a manner as would establish or become a debt chargeable to, or owed, or payable by, the Defendant, including his banking and savings accounts, credit cards, or any other assets, except pursuant to Order of this Court; and (k) pursuant to DRL § 237 awarding the Defendant interim counsel fees in the amount of twenty-five Thousand ($25,000.00) Dollars, with leave to request additional awards during the course of this litigation; and (l) awarding Defendant temporary residential custody of the infant issue of the marriage, to wit: AA, aged 5 years and AA, aged 3 years; and (m) for such other and further relief as to this Court seems just and proper. Plaintiff opposes the instant application.
PAPERS NUMBERED
+-------------------------------------------------------------------+ ¦ ¦Papers¦Exhibits¦ +---------------------------------------------------+------+--------¦ ¦Order to Show Cause–Exhibits and Affidavits Annexed¦40910 ¦A–N ¦ +---------------------------------------------------+------+--------¦ ¦Answering Affidavit and Exhibits ¦41003 ¦A–H ¦ +---------------------------------------------------+------+--------¦ ¦Replying Affidavit and Exhibits ¦6 ¦O–Z ¦ +---------------------------------------------------+------+--------¦ ¦Plaintiff's 2011 Tax Return ¦7 ¦ ¦ +---------------------------------------------------+------+--------¦ ¦So–Ordered Stipulation dated March 28, 2012 ¦8 ¦ ¦ +---------------------------------------------------+------+--------¦ ¦9 ¦ ¦ ¦ +-------------------------------------------------------------------+
Upon the papers listed above, this Order to Show Cause is hereby decided in accordance with this Decision/Order.
Plaintiff commenced the instant matrimonial proceeding with the filing of a Summons and Verified Complaint on August 12, 2011. On March 2, 2012, Defendant files the instant Order to Show Cause seeking an Order: (1) pursuant to DRL § 236(b) awarding the Defendant temporary, non-taxable spousal maintenance in the amount of Six Thousand Eight Hundred Seventy–Five ($6,875.00) Dollars per month and; (b) pursuant to DRL § 240(1)(b) awarding the Defendant temporary child support in the amount of Two Thousand Five Hundred ($2,500.00) Dollars per month; and (c) pursuant to DRL § 236(B) directing the Plaintiff to pay pendente lite, the mortgage, real estate taxes, water and homeowner's insurance on the marital residence located at 214–33 27th Avenue, Bayside, New York 11360; and (d) directing the Plaintiff to pay one hundred (100%) percent of the premiums and all unreimbursed and non-insured medical, dental, optical, therapeutic, psychological and pharmaceutical expenses for the Defendant and the infant issue of the marriage pendente lite; and (e) pursuant to DRL § 234 directing that the Defendant has exclusive use and possession of the 2010 Honda CRV; and (f) directing the Plaintiff to pay all expenses associated with the Defendant's automobile, including, but not limited to, insurance, maintenance and repairs, gas, oil, inspection and registration fees; and (g) directing the Plaintiff to maintain any/or purchase a life insurance on his life with a death benefit of a least One Million ($1,000,000.00) Dollars, naming Defendant as irrevocable beneficiary, pendente lite; and (h) directing the Plaintiff to pay the cost of the nursery school for AA; (i) restraining and enjoining the Plaintiff from transferring, encumbering, liquidating or otherwise disposing of any and all marital or separate assets, either real or personal, including, but not limited to, any assets and/or accounts in the name of Plaintiff with any other individual; and (j) enjoining and restraining the Plaintiff and his agents, partners, attorneys, servants and employees acting on his behalf, during the pendency of this action, from charging, spending, purchasing or borrowing anything in such a manner as would establish or become a debt chargeable to, or owed, or payable by, the Defendant, including his banking and savings accounts, credit cards, or any other assets, except pursuant to Order of this Court; and (k) pursuant to DRL § 237 awarding the Defendant interim counsel fees in the amount of Twenty–Five Thousand ($25,000.00) Dollars, with leave to request additional awards during the course of this litigation; and (l) awarding Defendant temporary residential custody of the infant issue of the marriage, to wit: AA, aged 5 years and AA, aged 3 years; and (m) for such other and further relief as to this Court seems just and proper. Plaintiff opposes the instant application. After oral arguments, the instant Order to Show Cause was submitted on July 11, 2012.
The parties have resolved several branches of the instant motion. On March 28, 2012, the parties entered into a So–Ordered Stipulation wherein Plaintiff agreed to continue to pay the carrying charges on the marital residence, including the mortgage, real estate taxes and homeowner's insurance. Plaintiff further agreed to continue to provide Defendant with $500.00 per week and Defendant's car insurance pending a decision on the motion. The parties agreed to sell the marital residence and hold the proceeds of sale in escrow pending settlement.
Accordingly, the branch of Defendant's application seeking an Order that Plaintiff pay pendente lite, the mortgage, real estate taxes and homeowner's insurance on the marital residence located at 214–33 27th Avenue, Bayside, New York 11360 is granted on consent as per the parties agreement.
The parties also resolved the issues of custody in the Preliminary Conference Order, dated January 11, 2012, and in the So–Ordered Stipulation, dated July 11, 2012. The parties agreed to share joint legal custody of the children and agreed to grant residential custody to Defendant.
Accordingly, the branch of Defendant's Order to Show Cause seeking residential custody of the children is granted on consent.
Plaintiff further consented to the branches of Plaintiff's motion seeking to restrain and enjoin Plaintiff from transferring, encumbering, liquidating or otherwise disposing of any and all marital or separate assets, either real or personal, including, but not limited to, any assets and/or accounts in the name of Plaintiff with any other individual and the branch seeking to enjoin and restrain the Plaintiff and his agents, partners, attorneys, servants and employees acting on his behalf, during the pendency of this action, from charging, spending, purchasing or borrowing anything in such a manner as would establish or become a debt chargeable to, or owed, or payable by the Defendant, including his banking and savings accounts, credit cards, or any other assets, except pursuant to Order of this Court.
Accordingly, Plaintiff's application is granted.
IT IS HEREBY ORDERED that neither party may transfer, encumber, liquidate or otherwise dispose of any and all marital assets or separate assets, either real or personal, including but not limited to any assets and/or accounts in the names of the parties, whether held jointly, separately or with any other individual pursuant to the Automatic Orders served.
IT IS FURTHER HEREBY ORDERED that neither party nor their agents, partners, attorneys, servants or employees acting on behalf of either party, may charge, spend, purchase or borrow anything in such a manner as would become a debt chargeable to or owed and payable by the other party, including banking and savings accounts, credit cards or any other asset, except pursuant to Order of this Court.
Plaintiff further consents to Defendant's application seeking exclusive use of the Honda CRV.
Accordingly, Plaintiff's application seeking exclusive use and possession of the 2010 Honda CRV is granted on consent.
Temporary Child Support
Defendant seeks temporary child support in the sum of $2,500.00 monthly and argues that Plaintiff's annual income is approximately $350,000.00. Plaintiff argues that he has been voluntarily paying $500.00 weekly to Defendant, which is more than sufficient to meet the children's expenses and is more than he would be required to be pay pursuant to the Child Support Standards Act (hereinafter “CSSA”).
Domestic Relations Law (hereinafter “DRL”) § 236(B)(7)(a) provides that the Court may award temporary child support. The statute further provides that, when the Court has information regarding the income and assets of the parties, the Court may make an award of temporary child support pursuant to CSSA as codified in DRL § 240. The Child Support Standards Act provides a numeric formula for calculating child support awards.
The Court must calculate each party's annual income. Annual income is defined as gross income as reported on the party's most recent tax return reduced by FICA, including Social Security and Medicare taxes, New York City locality taxes actually paid and other statutory deductions. The parties' incomes are then combined to calculate the combined parental income. The parties' combined parental income, up to $130,000.00 is multiplied by the applicable child support percentage. The resulting amount is the parties' basic child support obligation, which shall be prorated in the same proportion as each parent's income is to the combined parental income. Where the combined parental income exceeds $130,000.00, the court shall determine the amount of child support for the amount of the combined parental income in excess of $130,000.00, through the certain factors enumerated in the statute and/or the child support percentage. The factors the Court may consider are:
(1) the financial resources of the parents and the child;
(2) the physical and emotional of the child and the child's special needs and aptitudes;
(3) the child's standard of living the child would have enjoyed had the marriage or the household not been dissolved;
(4) the tax consequences to the parties;
(5) the non-monetary contributions that the parents will make towards the child's care and well-being;
(6) the educational needs of either parent;
(7) a determination that one parent's gross income is substantially less than the other parent's;
(8) the needs of the non-custodial parent's children for whom the non-custodial parent is providing support who are not subject to the instant proceeding and whose support has not been deducted from income, and the financial resources of any person obligation to support the children; however, this factor only applies if the resources available to support such children are less than the resources available to support the children who are subject to the instant proceeding;
(9) if the child is not receiving public assistance: (i) extraordinary expenses of the non-custodial parent incurred in exercising visitation; or (ii) expenses incurred by the non-custodial parent in extended visitation, provided that the custodial parent's expenses are substantially reduced as a result thereof; and
(10) any other factors the court determines are relevant in each case.
In the instant matter, it is undisputed that Defendant has not worked since the birth of the parties' first child. However, Defendant's 2010 tax returns reflects an annual income of $39,623.00. Although Defendant argues that the income was derived from her parents' investments, the Court relies on Defendant's representation in her tax returns and imputes income to her in the sum of $39,623.00. (See, Mahoney–Buntzman v. Buntzman, 12 NY3d 415, 422 [Ct App 2009] ). While Defendant argues that Plaintiff earns approximately $350,000.00 annually, she fails to provide evidence to substantiate her claim. Notably, although Plaintiff argues that is annual income is approximately $39,000.00, his Statement of Net Worth indicates monthly expenses in the sum of $14,062.00. A review of the parties' Statements of Net Worth indicates that the parties have minimal debt, other than the mortgage on the marital residence. The parties were able to meet their expenses monthly without the accumulation of debt. Incredibly, Plaintiff's income, as he reported on his 2010 and 2011 tax returns, is insufficient to meet the parties' expenses as they now put before the court. “In determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential” (Curran v. Curran, 2 AD3d 391, 392 [2d Dept 2003] ) ( emphasis added ).Thus, the Court finds the statements of parties regarding their income and expenses to be incredulous and imputes income to Plaintiff, in the sum of $14,062.00 monthly or $168,744.00 annually based upon the expenses paid by Plaintiff, as indicated in his Statement of Net Worth. With respect to Defendant, as stated above, her income is imputed to be $39,623.00.
Accordingly, the Court calculates the parties' gross annual income in the sum of $168,744.00 and $39,623.00, respectively. The parties failed to provide evidence for the statutory deductions for FICA, Social Security, Medicare and New York City locality taxes. Therefore, this Court makes no further deductions from their incomes.
The combined parental income is calculated in the sum of $208,367 .00. The parties' proportionate share of the combined parental income is eighty-one percent (81%) and nineteen percent (19%), respectively. The applicable child support percentage is twenty-five percent (25%) as the parties have two (2) children under the age of 21 years. The combined parental income up to $130,000.00 multiplied by the applicable child support percentage of twenty-five percent (25%), results in a basic child support obligation of $32,500.00. Plaintiff's pro rata share of the basic child support obligation is eighty-one percent, as his proportionate share of the combined parental income is eighty-one percent. Plaintiff's basic child support obligation is $26,325.00, annually or $2,193.75 monthly, up to the first $130,000.00 of the combined parental income.
In accordance with the statute, the Court now turns to the amount by which the combined parental income exceeds the $130,000.00 statutory cap. The amount of the combined parental income which exceeds $130,000.00 is $78,367.00. If the Court applied the statutory percentage of twenty-five percent (25%) to this sum, the parties' combined children's obligation is $19,591.75 annually. Plaintiff's pro rata share of $19,591.75 is $15,869.31 annually or $1,322.44 monthly. In consideration of the factors, including the financial resources of the parties and children, and the standard of living the children would have enjoyed had the marriage or household not been dissolved, the Court will apply the statutory percentage of twenty-five percent to the combined parental income which exceeds $130,000.00. Therefore, Plaintiff's basic child support is calculated as $42,194.31 annually or $3,516.19 monthly. Moreover, Plaintiff is directed to pay eighty-one percent (81%) of the children's unreimbursed health expenses, including medical, psychological, optical and pharmaceutical and dental expenses and eighty-one percent (81%) of child care expenses incurred by Defendant.
Accordingly, Defendant's application seeking pendente lite child support pursuant to the CSSA is granted based on the above calculation.
IT IS FURTHER HEREBY ORDERED that Plaintiff shall pay to Defendant the sum of $3,516.19 monthly, as and for temporary child support, effective March 2, 2012, commencing on November 1, 2012. Plaintiff shall receive credit for the voluntary payments of $500.00 weekly. All sums shall be credit toward arrearage. The applicable arrears shall be determined at trial.
Temporary Maintenance
Pursuant to the temporary maintenance statute, based upon the incomes of both sides as discussed above, Defendant maybe entitled to temporary maintenance in the sum that is different from the amount requested by Defendant or arbitrarily suggested by the income Defendant incredibly deduced to be Plaintiff's income. Notably, Plaintiff pays the mortgage, real estate taxes and homeowner's insurance on the marital residence.In opposition, Plaintiff argues that Defendant has limited expenses, as she resides with her parents. Plaintiff further argues that Defendant has more than $2,000,000.00 in liquid assets in her name and that the parties' incomes are virtually identical.
DRL § 236(B)(5–a) provides statutory guidelines to be applied in determining temporary maintenance awards in matrimonial proceedings. Application of the statutory guidelines results in a presumptive award of temporary maintenance. Unless the parties waive the application of the statutory guidelines, the Court must order the presumptive temporary maintenance award unless the court finds that the presumptive award would be unjust or inappropriate. Where the court finds that the presumptive temporary maintenance award would be unjust or inappropriate the court may adjust the presumptive temporary maintenance award upon consideration of the following factors as provided in DRL § 236(B)(5–a)(e)(1):
(a) the parties' standard of living during the marriage;
(b) the parties' age and health;
(c) the parties' earning capacity;
(d) the need of one party to incur education or training expenses;
(e) wasteful dissipation of marital property;
(f) transfers or encumbrances made in contemplation of a matrimonial proceeding without fair consideration;
(g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(h) acts by one party against another than have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment;
(i) the availability and cost of medical insurance for the parties;
(j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
(k) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
(l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
(m) the tax consequences to each party;
(n) marital property subject to distribution;
(o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
(p) contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(q) any factor the court shall expressly find to be just and proper.
Where the Court finds that the presumptive award of temporary maintenance is unjust or inappropriate and adjusts the temporary maintenance award, the court shall set forth the presumptive temporary maintenance award, the factors considered and the reasons the court deviated from the presumptive temporary award in a written order.
Applying the statutory guidelines, the Court must first determine the annual income of the parties. As defined pursuant to CSSA, annual income is gross income, less FICA and New York City or Yonkers income taxes. The parties' gross annual incomes are $168,744.00 and $39,623.00, respectively.
The Court is next required to perform two calculations using the parties' annual incomes, capping payor's income at $524,000.00. The resulting figures of the two calculations are compared. The presumptive award of temporary maintenance is the lesser of the two resulting figures or $0 of the result of the second calculation if less than or equal to $0. In the instant matter, Plaintiff is the payor spouse with an income of $168,744.00 and Defendant is the payee spouse with an income of $39,623.00.
For the first calculation, the Court is required to subtract twenty percent (20%) of the payee's annual income from thirty percent (30%) of the payor's annual income. Thirty percent of Plaintiff's income is $50,623.20. Twenty percent of Defendant's income is $7,924.60. Thus, the result from the first calculation is $42,698.60.
For the second calculation, the Court is required to subtract the payee's annual income from forty percent (40%) of the parties combined annual income. Forty percent of the parties' combined annual income is $83,346.80. Defendant's annual income is $39,623.00. Thus, the result of the second calculation is $43,823.80.
The guideline amount for temporary maintenance is the lower of the resulting figures from the required calculations. Therefore, the presumptive temporary maintenance award is $42,698.60 annually, or $3,558.22 monthly, or $1,642.25 biweekly, or $821.13 weekly.
In the instant matter, the Court finds that the presumptive award in the sum of $3,558.22 monthly is unjust or inappropriate and adjusts the award considering the factors as provided in DRL § 236(B)(5–a)(e)(1). Specifically, the Court adjusts the presumptive temporary maintenance award considering factor (q).
Factor (q) provides that the Court may consider any other factor which the court shall expressly find to be just and proper. The statute is silent regarding whether the Court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In the instant proceeding, Plaintiff has agreed to maintain the carrying charges on the marital residence, including the mortgage, real estate taxes and homeowner's insurance. According to both parties, the carrying charges on the marital residence total approximately $7,466.95 monthly as outlined, without dispute, in Plaintiff's net worth statement. This amount exceeds the presumptive maintenance award. Moreover, the statute is silent regarding whether the Court shall order the presumptive maintenance award where the Court directs the payor spouse to pay temporary child support pursuant to CSSA. In the instant proceeding, this Court directed Plaintiff to pay the sum of $3,516.19 as temporary child support, in addition to the monthly carrying charges on the marital residence, in the sum of $7,466.95. The Court notes that both parties each have access to assets in excess of one million dollars in savings accounts, securities and bonds. While the accounts are titled solely in each spouse's name, the majority of the accounts are jointly titled with each party's parent(s). Although Defendant argues that she does not have access to the funds titled in her name because it belongs to her parents, the Court notes that Defendant has been able to meet her monthly expenses without the contribution on Plaintiff. Pointedly, a review of Defendant's Statement of Net Worth indicates that Defendant has no liabilities and minimal credit card debt which is inconsistent to Defendant's statement of need. Defendant argues that she borrowed funds from her parents to meet her monthly expenses but failed to submit evidence to substantiate her claim. Defendant attended and graduated from medical school. Again, Defendant argues that she is unable to practice medicine because she has not completed her residency but failed to submit any evidence to substantiate her claim. It is worthy of note that Defendant's self prepared 2010 tax returns identify her occupation as a “physician.”
In consideration of all the above factors, Defendant's application seeking temporary maintenance is denied.
Defendant's Car Insurance and Plaintiff's Life Insurance Policy
Defendant seeks an Order directing Plaintiff to maintain the insurance policy for the 2010 Honda CRV. Plaintiff opposes the application. DRL § 236(B)(2)(b)(5) provides that during the pendency of a matrimonial proceeding each party shall maintain the existing automobile insurance. Therefore the status quo regarding the existing automobile insurance policy for the parties 2010 Honda CRV shall remain the same with Plaintiff be the responsible party while this action is pending.However, Defendant is responsible for all other expenses related to the maintenance of the vehicle including, but not limited to repairs, gas, oil, and registration costs.
Defendant's application seeking an Order directing Plaintiff to maintain the automobile insurance for the 2010 Honda CRV is granted.
IT IS FURTHER HEREBY ORDERED that Plaintiff is directed to maintain the existing automobile insurance policy for the parties' 2010 Honda CRV.
IT IS FURTHER HEREBY ORDERED that Defendant is responsible for all expenses related to the 2010 Honda CRV, with the exception of the automobile insurance. Defendant must bear all expenses, including, but not limited to repairs, gas, oil, and registration fees.
Life Insurance
Defendant also seeks an Order directing Plaintiff to maintain or purchase a life insurance policy on his life with a death benefit of at least one million dollars, naming Defendant as irrevocable beneficiary. Plaintiff indicates that he does not have a life insurance policy.
DRL § 236(B)(2)(b)(5) provides that during the pendency of a matrimonial proceeding, neither party shall change the beneficiaries of any existing life insurance policies and each party shall maintain the existing life insurance policy in full force and effect. However, Plaintiff indicated that neither party has a life insurance policy. Thus, Defendant's application is granted to the extent that the parties have any existing life insurance policies.
IT IS FURTHER HEREBY ORDERED that the parties shall maintain all existing life insurance policies, if any, in full force and effect, until further Order of the Court.
Water Bill
Plaintiff consented to pay the carrying charges on the marital residence as per the So Ordered Stipulation dated March 28, 2012. Plaintiff resides in the marital residence and is responsible for all carrying charges, including the mortgage, homeowner's insurance and real estate taxes. Defendant resides in a separate residence with the parties' children. Therefore, Plaintiff shall be responsible for all utilities in the marital residence.
IT IS FURTHER HEREBY ORDERED that Defendant's application seeking an Order directing Plaintiff to pay the water bill on the marital residence is granted.
Nursery School for AA
Defendant seeks an Order directing Plaintiff to pay the cost of nursery school for AA. Plaintiff argues that the children did not attend nursery school while the parties lived together in the marital residence.
DRL § 240 1–b(c)(7) provides that the Court may direct a non-custodial parent to pay for “post-secondary, private, special or enriched education” for a child, in consideration of the circumstances of the case, the parties' circumstances and the best interest of the child. If the Court determines that such educational expenses are in the child best interest, the Court shall direct payment of the educational expenses in a manner determined by the Court.
In the instant proceeding, Defendant indicates that the children attended nursery school while the parties lived together. Defendant failed to submit receipts or cancelled checks for nursery or preschool expenses during the relevant time period from 2010 to 2011. Moreover, the receipts submitted by Defendant for the period of April 2012, are for educational expenses incurred after Defendant left the marital residence. Furthermore, Defendant failed to present evidence to establish that the educational expenses are in the children's best interests. Notably, the educational expenses are not considered a child care expense. Curious, assuming that it is, Defendant is unemployed and has not indicated that she is currently seeking employment and unavailable to care for the children. (See DRL § 240 1–b(c)(6)).
Accordingly, Defendant's application seeking educational expenses for AA is denied.
Counsel fees
The Court now turns to the branch of Defendant's Order to Show Cause seeking counsel fees in the sum of $25,000.00. Plaintiff opposes the application and argues that the parties' incomes are similar and that Defendant has access to assets in excess of two million.
DRL § 237(a) provides that in a matrimonial proceeding the court may exercise its discretion to direct either spouse to pay the counsel fees of the other spouse. In exercising its discretion, the court shall consider the circumstances of the case. The statute further provides that, “there is a “rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” Additionally, courts have held that, “an award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse” (Prichep v. Prichep, 52 AD3d 61, 65 [2nd Dept 2008] ).
Preliminarily, the Court notes that there is a disparity in income in this case and incredible verification of income. The Court has imputed income to Plaintiff in the sum of $168,744.00. It is undisputed that Defendant has been unemployed since the birth of the parties' first child but the credible documents show Defendant has income and access to assets. In exercising its discretion to award counsel fees, the Court is directed to consider the circumstances of the case. A review of the parties' Statements of Net Worth indicates that Plaintiff has access to approximately $1,504,716.00 in savings, securities and deposits, while Defendant has access to approximately $2,183,652.80, in securities, bonds and notes. Although Defendant argues that the majority of the $2,183,652.80 belongs to her parents and denies access to these funds, the Court notes that delineation of the funds as separate or marital is a matter to be determined after trial. Notably, although Defendant indicated that she borrowed money from her parents to pay for her legal fees and other necessities, the loans are not reflected in her statement of net worth.Accordingly, Defendant's application seeking interim legal fees in the sum of $25,000.00 is denied.
So Ordered.